In the recent decision of 278 Palmer Street Pty Ltd v The Council of the City of Sydney  NSWLEC 1012, the Land and Environment Court considered a development control plan clause which required engineering certification that development works would not jeopardise the structural integrity of a contributory building in a heritage conservation area. The Commissioner refused consent on the basis that the structural impacts of the proposed development were uncertain, in part because the engineering certification relied on future details, and was not considered to meet the requirements of the clause.
The development application
The proceedings were an appeal against the Council’s refusal of the application by 278 Palmer Street Pty Ltd (‘Applicant‘) for development consent for alterations and additions to an existing building including:
- a part one and part two storey addition,
- a new basement for storage and services, and
- a change of use to a residential flat building containing 9 apartments and a rooftop terrace.
The heritage significance of the Site
The subject site (‘Site‘) is located within the East Sydney Heritage Conservation Area (‘HCA’). There was an existing warehouse on the Site which was also characterised as a contributory building and a Significant Architectural Building Type under the Sydney Development Control Plan 2012 (‘DCP’), being a warehouse and industrial building older than 50 years.
The DCP contains clause 3.10.1(1) which requires that any proposed alterations and additions to such a building be ‘supported by a report prepared by a suitably qualified practicing engineer certifying that the works will not jeopardise the structural integrity of the building’.
Uncertainty of structural impact on HCA
Dickson C’s analysis focused in particular on the Structural Engineering Feasibility Report (‘Structural Report‘) and two Structural Adequacy Certificates (‘Certificates‘) relied on by the Applicant to certify that the works would not jeopardise the structural integrity of the building, in satisfaction of cl 3.10.1(1) of the DCP.
The Structural Report stated that ‘…for the purposes of this report we have not undertaken a structural analysis of the building…’ (emphasis added)
The Second Structural Adequacy Certificate went on to state:
‘we certify that…the work can be carried out without jeopardising the structural integrity of the existing building provided the work is carried out generally in accordance with the methodologies set out in our report…, the intent of our details shown on the future certified structural drawings which will be prepared… and provided the work is carried out within the recommendations of the geotechnical engineering report …We also certify that our future details will be engineered in such a way as to be independent of the existing party walls such that no additional loads will be imposed on these walls and footings.’ (emphasis added)
Both the Structural Report and Certificates also noted that ‘some minor cracking may occur as a result of the building work. We believe that these cracks will not be structural’ without clarifying what this statement applied to. During the proceedings, the Applicant noted that they had been unable to get the author of the certificate to clarify this statement.
In considering the Structural Report and Certificate, Dickson C agreed with the Respondent that there was insufficient detail to provide certainty as to what outcome would be realized on the site as a result of the development. The Certificate (as quoted above) was an undertaking that focussed on ‘future details’ of the methodology rather than certifying the development itself.
Accordingly, Dickson C considered that the requirement of cl 3.10.1(1) of the DCP had not been met.
The Commissioner considered this to be an issue of determinative weight in the assessment of the development application for reasons including that:
- the fabric of the building is nominated in the DCP as contributing to the significance of the HCA;
- the proposed works included the construction of a basement and the part demolition of two boundary walls which would inevitably have altered the structural system of the existing building;
- cl 3.10.1(1) of the DCP requires an engineer’s certification that the works will not jeopardise the structural integrity of the building; and
- submissions raised by objectors at the hearing expressed concerns regarding the impact of the development on the structural stability and integrity of their properties.
The decision turned on the facts of the particular case and the detailed and particular provisions in the DCP.
It does appear that in order for the Commissioner to have been persuaded as to the adequacy of the structural certificate provided, detailed construction and structural drawings would have been required to have been prepared at DA stage so the engineer could certify, based on those drawings, that the structural integrity of the building was not jeopardised. This would seem to be the only way to avoid the Commissioner’s concern about reliance on ‘future details’.
The case is a reminder that where a planning control or DCP provision requires certification of a matter, or a report to a particular effect, care must be taken to ensure the certification or report does what the provision requires. Particular attention should be paid to the wording of the certification or report.
This case can be viewed here.